Cry me a river, Joburg tells traders

2013-11-27 10:00

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The City of Johannesburg has asked the high court to punish the displaced street traders seeking urgent interim relief because they are “abusing” the court for the “convenience” of having their matter heard this year.

The city even asked South Gauteng High Court Judge Ramarumo Monama to make a cost order against the traders to “show the court’s displeasure”.

Judgment was reserved after a hearing lasting from 2pm to 6pm yesterday while hundreds of supporters waited outside the court.

There is “nothing exceptional” about displaced street traders’ children going hungry or the other consequences of lost income suffered by the traders removed from Joburg’s inner city during Operation Clean Sweep, the city’s advocate, Gcinumuzi Malindi, argued.

“Their hardship is no different from what dismissed workers would face before Christmas,” said Malindi. The city is relying on labour court judgments on dismissed or suspended employees who were denied urgent hearings before using the Commission for Conciliation, Mediation and Arbitration (CCMA) to argue that suffering hardship is not enough to justify an urgent hearing.

Its other major argument against giving the traders an urgent hearing is that the urgency is “self-created”.

Monama yesterday simultaneously heard two urgent applications from traders’ organisations asking that roughly 2?000 legal and verified traders be immediately allowed back to their originally assigned trading spots in the inner city.

They then ask for a thorough review of Clean Sweep on the normal court roll, probably next year.

The city still hasn’t made any substantive arguments against the traders’ cases, but is trying to get the cases struck off the urgent court roll.

That would practically mean a hearing in March next year, leaving the displaced hawkers with little option but to submit to whatever the city eventually offers them – or simply give up.

“Applicants cannot come pull heartstrings to get into court,” Malindi told the court.

According to Malindi, the city will need a long time to legally justify its actions. Its court papers will ultimately be voluminous and requires unearthing documents from several departments’ archives back to 2008, he said.

The traders’ lawyers accuse the city of launching Clean Sweep under “false pretences”.

The crux of the urgent case is that the legal traders were summarily removed along with illegal ones and then later informed that they will not get back their original trading spots.

According to the South African Informal Traders’ Forum’s advocate, Paul Kennedy, the dispute is not whether the the city’s plans to relocate traders is sensible, but rather if it is executing it unlawfully.

The traders represented in court are “not the illegal ones the city rightly wants to kick out”, he told the court.

At the start of Clean Sweep, legal traders were made to believe only illegal traders will be removed while the legal ones get to return to their assigned spots as soon as possible.

“There is no dispute that our clients are legal traders,” said Kennedy.

“The city has the right to declare areas where trade is permitted or prohibited ... but the city has never prohibited trade in these areas.”

According to Kennedy, removing all traders from an area would involve a legally prescribed process involving public notices, comments, consultation and a gazetted declaration.

“Even if there is good reason to move people, you need to do it legally.

“There hasn’t been the slightest indication that our clients are not legally entitled to trade.”

The traders are calling the city’s main argument “misconceived and cynical”. It boils down to saying “we should not have believed them”, Kennedy argued yesterday.

The city is also basically arguing that a few more hungry children was not so bad because there is already so much suffering, said Kennedy.

Although Clean Sweep removals started on October 1, it only became clear a month later that the city intended to prohibit all street trading in areas where it previously had registered traders and provided stands.

Only then did it become apparent that the city actually has no clear plan for legal traders, said Advocate Chris Georgiades, acting for the South African National Traders’ Association.

The city has made commitments to move them to refurbished buildings or other “decentralised” street markets, although details are sketchy.

It shows the plan was really just to prohibit trade in parts of the city, said Georgiades.

The nearly 2 000 verified legal traders in the two cases are less than a third of the total trading community removed during Clean Sweep.

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